Tacconi v. Tacconi
| Decision Date | 01 October 1993 |
| Parties | Susan W. TACCONI, Respondent, v. Gregory P. TACCONI, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Ted P. Barraco, Rochester, for appellant.
Kennedy & Holter by Reid Holter, Victor, for respondent.
Order unanimously modified on the law and as modified affirmed without costs and matter remitted to Supreme Court for further proceedings in accordance with the following Memorandum: Defendant contends that Supreme Court erred in granting plaintiff temporary custody of the infant issue of the marriage and granting defendant limited supervised visitation without a hearing. The issues of custody and visitation should be determined after a full evidentiary hearing rather than on the basis of recriminatory and controverted affidavits (see, e.g., De Pinto v. De Pinto, 98 A.D.2d 985, 470 N.Y.S.2d 234; Anstett v. Wolcott, 94 A.D.2d 692, 461 N.Y.S.2d 1022; Kresnicka v. Kresnicka, 48 A.D.2d 929, 369 N.Y.S.2d 522; Bowman v. Bowman, 19 A.D.2d 857, 244 N.Y.S.2d 38). The custody and visitation portions of Supreme Court's order are therefore reversed and those issues are remitted to Supreme Court for an immediate hearing. We also note that it was error for Supreme Court, in making its custody and visitation determinations, to consider the psychological report submitted by plaintiff without the consent of the parties (see, Kesseler v. Kesseler, 10 N.Y.2d 445, 225 N.Y.S.2d 1, 180 N.E.2d 402; Matter of Brice v. Mitchell, 184 A.D.2d 1008, 584 N.Y.S.2d 246; Matter of Marciano v. Marciano, 56 A.D.2d 735, 392 N.Y.S.2d 747).
Supreme Court also erred in awarding plaintiff temporary child support and counsel fees without having a statement of net worth from either party or any other financial data (see, 22 NYCRR 202.16; see, e.g., Falcone v. Falcone, 112 A.D.2d 796, 797, 492 N.Y.S.2d 297). We therefore reverse that portion of the order and remit to Supreme Court for further consideration after submittal of the financial data. (Appeal from Order of Supreme Court, Monroe County, Curran, J.--Temporary Custody and Support.)
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... ... attorney's fees to defendant, however, because her fee application was not accompanied by a statement of net worth (see, 22 NYCRR 202.16[k]; Tacconi ... v. Tacconi, 197 A.D.2d 929, 604 N.Y.S.2d 852). We therefore vacate that portion of the order and remit the matter to Supreme Court for further ... ...
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Mazur v. Mazur
...basis without conducting an evidentiary hearing (see, Van Etten v. Van Etten, 207 A.D.2d 992, 617 N.Y.S.2d 689; Tacconi v. Tacconi, 197 A.D.2d 929, 604 N.Y.S.2d 852). This is not a case, however, where a parent seeks to change custody from one parent to another. Because the natural mother h......
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...to alter the existing custodial situation and to limit visitation without conducting a full evidentiary hearing (see, Tacconi v. Tacconi, 197 A.D.2d 929, 604 N.Y.S.2d 852; Matter of Amy W., 122 A.D.2d 592, 504 N.Y.S.2d 1002). We vacate the custody and visitation provisions of Supreme Court'......
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...court erred in awarding child support to plaintiff without having net worth statements and other financial data (see, Tacconi v. Tacconi, 197 A.D.2d 929, 604 N.Y.S.2d 852; Falcone v. Falcone, 112 A.D.2d 796, 797, 492 N.Y.S.2d 297). We therefore remit the matter to Supreme Court for a hearin......